Are Contractors and Property Owners Responsible for Injuries Sustained at a Construction Site when Pedestrians Are Distracted by Road Noise?

Construction sites are a common occurrence, and they are often easily accessible by pedestrians. There are many dangers present in an area that is under construction, and in extreme cases, passersby can sustain serious injuries when they come into contact with an exposed site. In the case of Peters v. Carlson & Sons, Inc. and Graham Enterprises, Inc., the Illinois Appellate Court addresses whether contractors and property owners are responsible if a pedestrian becomes distracted and suffers serious injury at an open construction site.

The Facts

In the Peters case, contractor R. Carlson & Sons, Inc. was constructing a gas station on property located at South Arlington Heights Road in Arlington Heights and owned by Graham Enterprises, Inc. During the course of the construction project, a hole had been excavated adjacent to a sidewalk. It was not marked with any fence, barricade, or other warning devices to alert pedestrians to its presence.

At around 5:15 a.m., Mr. Peters was walking on the sidewalk near the intersection of Arlington Heights Road and Algonquin Road, adjacent to the construction site. He heard the loud sound of brakes and skidding tires behind him. While still walking, he turned to look behind him. As he did this, he stepped off the sidewalk and onto the parkway, which was filled with rocks and dirt, and fell into a hole. Mr. Peters incurred medical bills in excess of $100,000 due to the injuries he sustained from this fall.

When interviewed, Mr. Peters stated that the area was “not too well lit,” but he was able to see where he was walking. He also said that he would have remained on the sidewalk if he hadn’t heard the sound. Furthermore, Mr. Peters noted that he frequently walked on that particular stretch of sidewalk and avoided the parkway because of its condition. He stated that “anybody could tell” the parkway was under construction and agreed that the conditions were “dangerous.” Additionally, Mr. Peters said that walking on the parkway would be “stupid to do.”

Mr. Peters filed a lawsuit against both the contractor and property owner, alleging negligence (carelessness). Specifically, Mr. Peters alleged that Carlson & Sons breached its duty to exercise ordinary care in maintaining and securing the premises so it would be reasonably safe for persons who were legally accessing the property. Mr. Peters also alleged that Graham Enterprises was liable for negligent hiring and supervision and was vicariously liable for Carlson’s negligence.

The Law of Open and Obvious Hazards & The Distraction Exception

In Illinois, property owners are responsible for injuries suffered by people who are legally present on their property in cases where the owner has failed to exercise reasonable care in maintaining its safe condition. Owners must use care to discover dangerous conditions and either remove the dangers or provide warnings so others can avoid them. Owners are responsible for injuries when they are aware of a dangerous condition on their property, and they are also responsible if they would have known about the dangers had they conducted reasonable inspections.

However, a party who owns or controls land is not required to protect against injury when a potentially dangerous condition is “open and obvious”—in other words, when the average person would recognize a situation as dangerous. Common “open and obvious” conditions include fire, height, and bodies of water, but the rule has broad application and is relevant whenever a clearly dangerous situation exists. According to Illinois law, property owners are not liable for physical harm that is sustained when a person engages in activity where a known and obvious danger exists.

Even so, there are exceptions to the “open and obvious” rule, one of which is the “distraction exception.” This exception applies in situations where the property owner has reason to believe that people’s attention could be distracted in a way that will prevent them from discovering an otherwise open and obvious hazard, make them forget about a hazard, or prevent them from protecting themselves against a hazard. However, a distraction is not a commonplace situation that could occur at any location. Rather, it is a “special circumstance” that a reasonable property owner would be aware of. Therefore, property owners are not legally obligated to safeguard against commonplace distractions that could occur anywhere. Additionally, distractions caused entirely by the injured party are not considered foreseeable so the property owner has no legal obligation to protect against such distractions. Furthermore, while defendants don’t have to create or contribute to the distraction in order for the exception to apply, courts generally find that defendants are unable to foresee distractions that they did not contribute to.

The Decision

Carlson and Graham asked the trial court to grant a summary judgment, arguing that all the evidence produced by Mr. Peters, even if believed by a jury, was insufficient for a jury to find in his favor.  They argued that Mr. Peters admitted the condition was an open and obvious hazard, thus they had no legal duty to protect him. Additionally, they argued that the distraction exception does not apply in this case because it is only relevant in situations where the defendant directly contributes to the distraction. (Neither Carlson nor Graham were involved in creating the loud sound that distracted Mr. Peters.) Mr. Peters disagreed, arguing that defendants need to foresee a distraction for the exception to apply but do not have to directly cause or contribute to it. The trial court judge agreed with Carlson and Graham and dismissed the case.

Mr. Peters then appealed the trial court’s decision to the Illinois Appellate Court. He argued that there are factual disputes as to whether the hole he fell into should be considered open and obvious. Furthermore, he argued that the distraction exception applies.

Upon reviewing the case, the appellate court upheld the trial court’s decision, agreeing that the condition of the parkway was an open and obvious hazard of which Mr. Peters should have been aware. The court also agreed that the distraction exception is inapplicable because the sound of brakes and skidding tires is a commonplace occurrence, thus it does not qualify as a special circumstance. Additionally, the defendants did not contribute to the distraction, making it difficult for them to foresee the distraction.


Property owners and contractors are not responsible for injuries suffered on their property or construction site when the injury occurs due to a hazard that would be labeled as “open and obvious.” Additionally, property owners are not responsible when the injury is caused by a common, run-of-the-mill distraction that is not unique to the particular property or situation. While defendants do not need to cause or contribute to a distraction in order for the exception to apply, they must be able to foresee the distraction. Therefore, it is unusual for the exception to apply in cases where the defendant was not involved in creating the distraction.